SUPREME COURT KILLS PARENTS' CIVIL SUIT OVER SON'S HANGING DEATH IN JAIL
Dallas County v. Posey, No. 08-0094 (Tex. 2009)(per curiam)
(TTCA, prisoner suicide with cord in cell)
Should suicidal prisoners have phones with a cord in their cell, with which they can kill themselves?
Probably not a good idea. Dallas County concluded as much and started removing them and
replacing them with cordless phones. No rush needed to make jail cells safe in addition to secure,
though. In one of its most recent rulings in tort claims act cases, Texas Supreme Court absolves
county of any responsibility for prisoner's death-by-hanging in a holding cell on immunity grounds.
Tragic, no doubt, the court concedes. Case dismissed. Accident victims suing under the Tort Claims
Act suffer the same fate. Loose gravel on road not a special defect. Cases dismissed.
Also see: JCW Electronics, Inc. v. Garza, No. 05-1042 (Tex. June 27, 2008) (Opinion by Justice David
Medina) (product liability, breach of implied warranty, prisoner strangled with cord of phone
represented as safe for unsupervised use by inmates) Texas Supreme Court Tort Claims Act
Bryan Posey’s suicide was tragic, but the circumstances under which
governmental immunity is waived under the Act are very narrow and are not
present here. Accordingly, we grant the county’s petition for review and, without
hearing oral argument, vacate the court of appeals’ judgment and dismiss the
DALLAS COUNTY v. KIM POSEY, ET AL.; from Dallas County; 5th district (05-06-01373-CV, 239
SW3d 336, 08-28-07
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court vacates the court of appeals' judgment and dismisses the case.
Per Curiam Opinion
Dallas County v. Posey, No. 08-0094 (Tex. 2009)(per curiam)
In this governmental immunity case, we decide whether a prisoner’s use of a telephone cord
to commit suicide in a county holding cell constitutes a “condition or use” of tangible personal
property for which the Tort Claims Act waives governmental immunity. See Tex. Civ. Prac. &
Rem. Code § 101.021(2).
We hold that immunity was not waived; accordingly, we vacate the court of appeals’ judgment
and dismiss the case.
Bryan Posey was arrested for assaulting his mother. During the intake procedure, he denied
ever having attempted suicide or having suicidal thoughts or tendencies. The standard intake
procedure included completion of a Mental Disability/Suicide Screening Form, but the intake
officer left blank a question that inquired whether the officer believed Posey to be a medical,
mental health, or suicide risk. Posey was then seen by a nurse for a cut on his hand, and the
nurse referred him to a psychiatrist for an anger management evaluation. Posey was placed
in a holding cell with a cordless telephone. He made repeated, harassing calls to his mother,
who requested that he be stopped from calling her. The officers moved Posey to a holding
cell with an inoperative telephone. This telephone, however, had a cord. Shortly thereafter,
the officers discovered Posey had committed suicide by hanging himself with the telephone
Posey’s parents sued the county, claiming it was negligent in failing to assess Posey’s
suicide risk and in placing him in a cell with a defective corded telephone. They presented
evidence to the trial court that the county had ordered the replacement of all corded
telephones with cordless telephones, indicating the county’s awareness that telephone cords
posed a significant suicide risk. The county filed a plea to the jurisdiction, claiming that its
immunity was not waived. See id. The trial court denied the county’s plea to jurisdiction, and
the court of appeals affirmed. 239 S.W.3d 336 (Tex. App.—Dallas 2007).
A governmental unit waives immunity for “personal injury and death so caused by a condition
or use of tangible personal or real property if the governmental unit would, were it a private
person, be liable to the claimant according to Texas law.” Tex. Civ. Prac. & Rem. Code §
101.021(2). Immunity is not waived when the governmental unit merely “allow[s] someone
else to use the property and nothing more.” San Antonio State Hosp. v. Cowan, 128 S.W.3d
244, 246 (Tex. 2004).
In Cowan, we held that the government did not waive immunity by providing suspenders and
a walker to a patient who later used them to hang himself because it was the patient—not the
government—who used the property. Id. In terms of the county’s use of the property, this case
is factually indistinguishable from Cowan. Here, the county did no more than place Posey in a
cell with a corded telephone, which he used to commit suicide. Therefore, we agree with the
court of appeals that “the incident in this case did not arise from the [c]ounty’s use of
property.” 239 S.W.3d at 342 (emphasis in original).
Posey’s parents also argue that the county’s failure to replace the telephone in the holding
cell with a cordless telephone equates to negligent use because the county was aware of
previous suicides using telephone cords. But failing to replace corded telephones with
cordless ones is, at best, a misuse or a non-use, neither of which waives immunity under the
Act. See, e.g., Cowan, 128 S.W.3d at 245–46 (rejecting contention that hospital misused a
walker and suspenders by allowing patient to have them); Kerrville State Hosp. v. Clark, 923
S.W.2d 582, 584 (Tex. 1996) (holding that hospital’s “failure to administer an injectionable
drug [instead of an oral drug] is non-use of tangible personal property and therefore does not
fall under the waiver provisions of the Act”).
Posey’s parents further argue that the condition of the telephone proximately caused Posey’s
death—an issue we did not address in Cowan. To find proximate cause, there must be a
nexus between the condition of the property and the injury. See Dallas County Mental Health
& Mental Retardation v. Bossley, 968 S.W.2d 339, 342–43 (Tex. 1998). This nexus requires
more than mere involvement of property; rather, the condition must actually have caused the
injury. Id. at 343. Posey’s parents claim that the condition of the corded telephone was
defective because, not only was it inoperable, but wires were exposed on the handset. The
incident memorandum prepared after the suicide stated that Posey “placed the receiver
between the exposed  wires of the telephone cord” in order to create the ligature he used to
commit suicide. The court of appeals found proximate cause, reasoning that “without the
corded telephone being in the cell, Bryan Posey would not have died by hanging himself with
the telephone’s cord.” 239 S.W.3d at 342 (citing Sw. Key Program, Inc. v. Gil-Perez, 81 S.W.
3d 269, 274 (Tex. 2002)). However, there was no causal nexus between the condition of the
exposed wires and the injury. For a defective condition to be the basis for complaint, the
defect must pose a hazard in the intended and ordinary use of the property. For example, the
exposed wires in this case might have posed an electrical hazard to an ordinary user of the
telephone. But the exposed wires here did not cause the injury; they instead constituted no
more than a condition of the property that was then used by Posey to form a ligature for
suicide. The requisite nexus between the condition complained of and the harm was thus not
established. Therefore, the county’s immunity is not waived under the Act.
Finally, Posey’s parents argue that the county failed to properly assess Posey as a suicide
risk, pointing to Posey’s incomplete suicide prevention screening form as evidence that the
county’s immunity is waived under the Act. However, the quality of Posey’s assessment has
no bearing on the county’s immunity. In Cowan, we held that immunity was not waived even
though the patient was committed for having suicidal tendencies. 128 S.W.3d at 247. So
even if Posey had apparent suicidal tendencies, the county would still be immune under
Cowan because it did no more than place Posey in a cell with a corded telephone which he,
himself, used to commit suicide.
Bryan Posey’s suicide was tragic, but the circumstances under which governmental immunity
is waived under the Act are very narrow and are not present here. Accordingly, we grant the
county’s petition for review and, without hearing oral argument, vacate the court of appeals’
judgment and dismiss the case.
OPINION DELIVERED: May 22, 2009
 While the court of appeals held that the county received proper notice as required by section
101.101(a) of the Civil Practices and Remedies Code, we need not decide this issue because we
hold that the county’s immunity is not waived.